Information Note on the Court’s case-law 197

June 2016

Naït-Liman v. Switzerland - 51357/07

Judgment 21.6.2016 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Absence of universal jurisdiction of civil courts in torture cases: no violation

[This case was referred to the Grand Chamber on 28 November 2016]

Facts – The applicant, a Tunisian political refugee who had settled in Switzerland in 199 3, lodged a criminal complaint against a former Minister of the Interior of the Tunisian Republic, during the latter’s brief stay in a Swiss hospital in 2001, for acts of torture allegedly perpetrated against the applicant in 1992 at the premises of the Mi nistry in Tunisia. The proceedings in respect of that complaint were discontinued on the grounds that the former Minister had left Switzerland. The applicant then instituted civil proceedings against him and against the Tunisian State seeking damages. Howe ver, the Swiss courts declined jurisdiction on the grounds that the facts of the case were insufficiently connected with Switzerland.

Law – Article 6 § 1

(a) Refusal of the Swiss courts to accept jurisdiction as “forum of necessity” under domestic law

The refusal to examine the merits of the applicant’s civil action had been motivated by the concern to ensure the proper administration of justice and the effectiveness of domestic judicial decisions. Universal jurisdiction, in a civil context, would risk creating considerable practical difficulties for the courts, particularly regarding the administration of evidence and the enforcement of such judgments. The acceptance of universal jurisdiction would also be liable to cause undesirable interference by a c ountry in the domestic affairs of another country.

The domestic courts had examined whether their jurisdiction could be based on the concept of “forum of necessity”, recognised in Switzerland under Article 3 of the Federal Act on International Private Law (“the LDIP”). They had concluded that the condition requiring the existence of a “sufficient connection” between the applicant’s claim and Switzerland was not met. Their interpretation of Article 3 of the LDIP in the present case did not appear arbitrary; nor had it been unreasonable to observe that all the aspects of the case concerned Tunisia.

In those circumstances the Swiss authorities had been justified in taking account of the problems of taking evidence and enforcing judgments that would have arisen as a result of their accepting jurisdiction. They had also been justified in finding that the fact that the applicant had settled in Switzerland, both after the facts of the case and for reasons unconnected with them, did not have to be taken into account. The Federal Court had not been in a position to take account of the applicant’s acquisition of Swiss nationality, which had been granted the day before the Federal Court’s decision and confirmed only afterwards.

The comparative-law study carried out by th e Court supported the Federal Court’s approach regarding the concept of “forum of necessity”. The study showed that only a minority of nine out of the 26 Contracting States studied provided for that type of jurisdiction.  Moreover, in the States in questio n that jurisdiction was subject to strict conditions, which had to be met cumulatively: inability to bring the case before the courts of another State, and the existence of a sufficient connection between the facts of the case and the requested forum State . The criteria used to assess that link were normally nationality and domicile or habitual residence. Accordingly, Article 3 of the LDIP was in no way exceptional and fell within a very broad consensus among the member States of the Council of’ Europe whic h had introduced that type of jurisdiction into their domestic legal order.

(b) Lack of binding norms of international law

It remained to be determined whether the acceptance of universal civil jurisdiction was a requirement under other norms of international law. The question arose with regard to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , ratified by Switzerland, Article 14 of which required the States Parties to guarantee victims of torture a right to compensation. However, the wording of that provision was not unequivocal as to its extraterritorial application. Admittedly, the Committee against Torture had construed Article 14 as not limited to victims of tort ure committed on the territory of the requested State Party or by or against one of its nationals. However, that approach had not been followed by the States Parties to that instrument. On the contrary, none of the 26 European States covered by the Court’s comparative-law study currently recognised universal civil jurisdiction for acts of torture.

Furthermore, several States already provided for universal criminal jurisdiction of their courts, with the victim thus able to apply to join the criminal proceedi ngs as a civil party seeking damages. In the present case the applicant had in fact applied to join the proceedings as a civil party, even though his criminal complaint had been discontinued after the defendant had left Switzerland.

Consequently, in the Co urt’s view, Switzerland had not been bound by any Convention obligation to accept the applicant’s civil action. Furthermore, given the lack of a common practice among the States expressing an opinio juris to that effect, universal civil jurisdiction could not be deemed to have the status of a rule of customary law.

(c) Conclusion – In conclusion, notwithstanding the fact that the prohibition of torture was jus cogens , the Swiss courts’ decision to decline jurisdiction in respect of the applicant’s claim fo r compensation had pursued legitimate aims in a proportionate manner and had not deprived the applicant’s right of access to a tribunal of its very essence.

Conclusion : no violation (four votes to three).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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